By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
For ADR Scheduling: contact Kelsey@adrservices.org
Civil Trial Lawyer & ABOTA Member
California attorney since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
www.montymcintyre.com
CALIFORNIA SUPREME COURT
Civil Procedure (Expert Witnesses)
Perry v. Bakewell Hawthorne (2017) _ Cal.5th _ , 2017 WL 712748: The California Supreme Court affirmed the Court of Appeal’s decision affirming the trial court’s order granting summary judgment for defendant. The California Supreme Court ruled that, when a court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised. (February 23, 2017.)
Torts (Interference With Prospective Economic Advantage)
Roy Allan Slurry Seal v. American Asphalt South (2017) _ Cal.5th _ , 2017 WL 631765: The California Supreme Court reversed the Court of Appeal decision that had found plaintiff’s complaint sufficient to plead interference with prospective economic advantage in a case filed by a contractor that was the second lowest bidder for public works projects. To prove the tort of intentional interference with prospective economic advantage, a plaintiff must establish the existence of an economic relationship with some third party that contains the probability of future economic benefit to the plaintiff. The California Supreme Court found that no such relationship exists between a bidder for a public works contract and the public entity soliciting bids, and the trial court had properly sustained a demurrer without leave to amend. (February 16, 2017.)
CALIFORNIA COURTS OF APPEAL
Attorney Fees
Rhule v. WaveFront Technology, Inc. (2017) _ Cal.App.5th _ , 2017 WL 712633: The Court of Appeal affirmed the trial court’s order awarding $8,125.00 in attorney fees to defendant after it permitted plaintiff to withdraw admissions he mistakenly made in response to two requests for admission served by defendant. There was no reporter’s transcript, and the Court of Appeal rejected plaintiff’s arguments that the attorney fees award was made without statutory authority and was an abuse of the trial court’s discretion. (C.A. 2nd, February 23, 2017.)
Civil Code
Argentieri v. Zuckerberg (2017) _ Cal.App.5th _ , 2017 WL 605313: See summary below under Civil Procedure.
Civil Procedure (Anti-SLAPP, Discovery, Summary Judgment)
Argentieri v. Zuckerberg (2017) _ Cal.App.5th _ , 2017 WL 605313: The Court of Appeal affirmed the trial court’s order granting defendant’s anti-SLAPP motion to strike a complaint regarding an allegedly defamatory statement made by the general counsel for Facebook related to pending litigation. The sole issue on appeal was whether plaintiff had established a probability of prevailing on the claim. The Court of Appeal ruled that plaintiff had no probability of prevailing on his claim because the alleged defamatory statement was subject to the fair and true reporting privilege in Civil Code section 47(d). (C.A. 1st, February 15, 2017.)
Bank of New York Mellon v. Citibank (2017) _ Cal.App.5th _ , 2017 WL 632755: See summary below under Equity.
Doe v. State of California (2017) _ Cal.App.5th _ , 2017 WL 611891: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike in an action where plaintiffs alleged civil rights violations, negligence, false/wrongful arrest, defamation, and loss of consortium against governmental entity defendants. Over many years defendants allegedly caused plaintiff John Doe to register as a sex offender through threats of enforcement, maintained him on California’s sex offender registry, and publicly disseminated his name as a registered sex offender. Later plaintiff allegedly determined for the first time that he was not required to register as a sex offender because his prior sex offense convictions had been reversed on appeal. The trial court properly found that plaintiffs’ causes of action arose from protected activity, and plaintiffs failed to show a probability of prevailing on their causes of action. (C.A. 4th, Filed January 26, 2017, published February 15, 2017.)
Hamilton v. Orange County Sheriff’s Department (2017) _ Cal.App.5th _ , 2017 WL 491747: The Court of Appeal reversed the trial court’s order granting an unopposed motion for summary judgment in a case alleging employment discrimination. The trial court declined to accept the parties’ stipulation to continue the summary judgment motion hearing and trial for 60 days. The parties had agreed to these continuances to allow plaintiff to take depositions of the witnesses whose declarations had been submitted in support of defendant’s pending summary judgment motion. Plaintiff had timely noticed the depositions but they could not go forward because defendant’s counsel was engaged in trial. The court had earlier granted defendant’s ex parte motion to continue the trial so that defendant’s summary judgment motion could be heard. Under these circumstances, the trial court erred and abused its discretion by not accepting the stipulation to continue the summary judgment motion hearing and trial. (C.A. 4th, filed February 7, 2017, published February 14, 2017.)
Professional Collection Consultants v. Lauron (2017) _ Cal.App.5th _ , 2017 WL 634714: The Court of Appeal reversed the trial court’s order granting summary judgment to defendant in a credit card debt collection action involving two credit cards. The trial court had agreed with defendant’s arguments that a Delaware statute of limitations applied to the claims because the underlying credit card agreement (Cardmember Agreement) contained a Delaware choice-of-law provision and that, under Delaware’s applicable three-year limitations period, the claims were untimely. The Court of Appeal found that, with respect to the first credit card, there was no evidence the Cardmember Agreement applied nor was there any evidence as to when the claims accrued, so defendant had not established the claims were untimely. As to the second credit card, the Court of Appeal agreed that Delaware’s three-year limitations period applied to the claims, but the summary judgment had to be reversed because defendant had not established when the claims accrued. (C.A. 6th, February 16, 2017.) Rhule v. WaveFront Technology, Inc. (2017) _ Cal.App.5th _ , 2017 WL 712633: See summary above under Attorney Fees.
Samara v. Matar (2017) _ Cal.App.5th _ , 2017 WL 604714: In a dental malpractice case, the Court of Appeal reversed the trial court’s summary judgment for defendant dentist that had been based on the grounds that plaintiff’s case was barred by issue preclusion and that plaintiff could not show that defendant had independently caused her any injury. The Court of Appeal ruled that the trial court erred in granting summary judgment on the ground of claim preclusion because there were not successive lawsuits. An earlier decision affirming a summary judgment for another defendant dentist had affirmed the judgment solely on statute of limitations grounds, expressly declining to reach the causation question against that dentist, so the issue of that dentist’s negligence had not been conclusively established. The Court of Appeal ruled, in agreement with the Fourth District, the First District, and Division Three of the Second District, that it is not proper to give conclusive effect under the doctrine of issue preclusion to a ground a Court of Appeal expressly declined to reach in an earlier decision. (C.A. 2nd, February 15, 2017.)
Secci v. United Independent Taxi Drivers (2017) _ Cal.App.5th _ , 2017 WL 605487: See summary below under Torts.
Southern California Sunbelt Developers, Inc. v. Banyan Limited Partnership (2017) _ Cal.App.5th _ , 2017 WL 222723: The Court of Appeal reversed the trial court’s order denying a cost request seeking $281,000 in receivership fees to a prevailing party under Code of Civil Procedure section 1033.5(c). The trial court had denied the request on the grounds the matter was previously decided when the court terminated the receivership and approved the receiver’s final accounting. The Court of Appeal ruled that the court retained authority to exercise its discretion and consider whether the receivership fee should be paid by one party or shared between the parties. It reversed the order granting the motion to tax costs and remanded the matter to permit the trial court to exercise its discretion on this limited issue. (C.A. 4th, filed January 19, 2017, published February 16, 2017.)
Education
Golden Day Schools, Inc. v. Office of Administrative Hearings (2017) _ Cal.App.5th _ , 2017 WL 677592: The Court of Appeal affirmed in part and reversed in part the trial court’s rulings in a writ proceeding that upheld certain findings of an Administrative Law Judge (ALJ) which entitled the California Department of Education (Department) to recoup more than $3 million that it had paid to petitioner to provide childcare services to eligible children in impoverished areas of South Central Los Angeles. The Court of Appeal ruled the Department was permitted under Education Code section 8448(h) to conduct its own contract performance audit despite having accepted and closed petitioner’s independent financial and compliance audits. It also held that substantial evidence supported the findings of the ALJ and the trial court that the Department was allowed to recoup (i) costs for commingling eligible and noneligible students, (ii) certain payroll costs for employees who also worked at a charter school on some of the same sites, and (iii) various nonreimbursable costs. The Court of Appeal reversed the trial court’s reversal of the ALJ’s decision to uphold a disallowance of certain rental payments. (C.A. 2nd, February 21, 2017.)
Employment (FEHA)
Atkins v. City of Los Angeles (2017) _ Cal.App.5th _ , 2017 WL 588127: The Court of Appeal affirmed in part, reversed in part, and remanded a judgment for plaintiffs following a jury trial in an action for damages under the Fair Employment and Housing Act (FEHA) by five recruit officers of the Los Angeles Police Department who were terminated or constructively discharged from the Police Academy. Each plaintiff had suffered temporary injuries while training at the Police Academy. The Court of Appeal ruled that the plaintiffs were not “qualified individuals” under FEHA for purposes of their discrimination claim but did satisfy this requirement for their failure to accommodate claim. Requiring the City to assign temporarily injured recruit officers to light-duty administrative assignments was not unreasonable as a matter of law. Because plaintiffs had completed only hours or weeks of their Academy training, the jury’s award of future economic losses through the time of their hypothetical retirements was unreasonably speculative, and this portion of the damages award was vacated as well as the trial court’s award of attorney fees and costs. (C.A. 2nd, February 14, 2017.)
O’Neal v. Stanislaus County Employees’ Retirement Association (2017) _ Cal.App.5th _ , 2017 WL 712743: The Court of Appeal reversed the trial court’s order granting summary judgment to defendant in an action challenging defendant’s implementation of several changes to the actuarial calculations used to determine how to amortize unfunded liabilities within the system and reduce or replace required employer contributions. The Court of Appeal ruled that the trial court correctly determined plaintiffs were not entitled to summary judgment, but erred in determining no material issues of fact remained and therefore reversed the summary judgment for defendants. (C.A. 5th, February 23, 2017.)
Equity (Equitable Subrogation)
Bank of New York Mellon v. Citibank (2017) _ Cal.App.5th _ , 2017 WL 632755: The Court of Appeal reversed the trial court’s order sustaining a demurrer without leave to amend in an action between two lenders arising out of the simultaneous refinancing of a home equity line of credit by the two lenders in 2006, which resulted in a dispute over the priority of their recorded deeds of trust. The trial court sustained the demurrer on the grounds the action was barred by the three-year statute of limitations in Code of Civil Procedure section 338. The Court of Appeal reversed because it found that plaintiff had stated a cause of action for equitable subrogation even though this claim was not specifically pled, and the claim for equitable subrogation was not subject to section 338 and was not time-barred. (C.A. 2nd, February 16, 2017.)
Government
Finch Aerospace Corp. v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 727611: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend, but for different reasons than the trial court. Under the doctrine of tort of another, plaintiff filed this action for slander of title against defendant to recoup attorney fees and other expenditures it incurred as a result of earlier litigation with another party. In sustaining the demurrer, the trial court found defendant was immune from liability under Government Code section 818.8 and related section 822.2. The Court of Appeal ruled that the immunities in sections 818.8 and 822.2 did not apply to a slander of title cause of action. But it also found that plaintiff failed to adequately allege a slander of title cause of action and also failed to demonstrate it could cure the pleading deficiencies by amendment. Therefore, the demurrer was properly sustained without leave to amend. (C.A. 4th, February 24, 2017.) O’Neal v. Stanislaus County Employees’ Retirement Association (2017) _ Cal.App.5th _ , 2017 WL 712743: See summary above under Employment.
Real Property
Bank of New York Mellon v. Citibank (2017) _ Cal.App.5th _ , 2017 WL 632755: See summary above under Equity.
Finch Aerospace Corp. v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 727611: See summary above under Government. Vieira Enterprises v. McCoy (2017) _ Cal.App.5th _ , 2017 WL 281816: The Court of Appeal affirmed the trial court’s decisions, in a real property boundary case, that plaintiff had not carried its burden of establishing all the elements of adverse possession, that structures built by defendant on plaintiff’s right of way did not unreasonably interfere with plaintiff’s right of way, and that a mobile home extension built on defendant’s right of way did not unreasonably interfere with his right of way. The Court of Appeal also affirmed the jury’s verdict awarding defendant $20,000 after it found that plaintiff’s blockading of the road involved trespassing on defendant’s property. While the Court of Appeal ruled that the burden of proof of a prescriptive easement or prescriptive termination of an easement is not clear and convincing evidence and that adverse possession of an easement can originate with the possessor’s mistake, and also stated that the trial court should have instructed the jury about damages for annoyance and discomfort consistent with Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, these findings did not require reversal of the judgment. (C.A. 6th, filed January 23, 2017, published February 22, 2017.)
Torts (Duty, Vicarious Liability)
Argentieri v. Zuckerberg (2017) _ Cal.App.5th _ , 2017 WL 605313: See summary above under Civil Procedure.
Doe v. United States Youth Soccer (2017) _ Cal.App.5th _ , 2017 WL 706179: The Court of Appeal reversed the trial court’s order sustaining a demurrer without leave to amend in a case alleging sexual abuse of a minor by her former soccer coach. The Court of Appeal ruled that defendants had a duty to conduct criminal background checks of all adults who would have contact with children involved in their programs. As a result, the fourth amended complaint adequately alleged a cause of action for negligence. (C.A. 6th, February 22, 2017.)
Finch Aerospace Corp. v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 727611: See summary above under Goverment. Lynn v. Tatitlek Support (2017) _ Cal.App.5th _ , 2017 WL 696008: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in a vicarious liability case on the basis that defendant was not vicariously liable for the accident under the doctrine of respondeat superior. The Court of Appeal ruled that plaintiff had failed to present evidence supporting the extraordinary-commute incidental benefit exception, the compensated travel-time exception, or the special risk exception to the going and coming rule. (C.A. 4th, February 22, 2017.)
Secci v. United Independent Taxi Drivers (2017) _ Cal.App.5th _ , 2017 WL 605487: In a personal injury case, the Court of Appeal reversed the trial court’s order granting a motion for judgment notwithstanding the verdict in favor of defendant on the basis that the evidence was insufficient to support the jury’s verdict finding that a taxi driver was defendant’s agent. Defendant was an association of taxicab drivers. It argued on appeal that the trial court correctly granted its motion because the only evidence supporting an agency finding were requirements imposed by public regulation or third parties. California law recognizes that an individual hired as an independent contractor may be an agent. Public regulation of an industry does not, as a matter of law, shield a party from vicarious liability when it hires independent contractors rather than employees. The Court of Appeal ruled that the trial court erred in granting the motion because there was substantial evidence that defendant controlled significant aspects of its drivers’ work. (C.A. 2nd, February 15, 2017.)
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